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  1. #1

    Default Can You Fire an Employee Who May be FMLA-Eligible

    Good Day.

    I need your expertise please. I have a situation. Here is it.

    State: California
    Employer: Environmental Construction
    10 employees total

    An employee (Stan) and his wife welcome a new baby into the world. So sad and unfortunate the baby passes aways from SIDS. The employer (XXX) work is slow and all the employees are working limited hours and it's the holiday season.

    Stan calls within a week and says he wants to return to work however XXX feels he's not fit to return to duty. XXX asks Stan to seek a medical provider's opinion on his own or XXX will send Stan for a fit for duty exam (paid for my XXX).

    Stan "states" he has seen a medical provider but does not provide XXX with any documentation. XXX asks on 2 separate occasions via email for Stan to provide documentation. Stan ignores requests.

    While Stan is out on leave he uses XXX gas card without permission. He uses $446.17 in gas charges and a $25.00 toll fee.

    Stan is not a good employee and has several verbal and written warnings in his personnel file. Most recent XXX became aware of Stan slandering XXX but has not been able to discuss with Stan as he has not returned to work.

    “When an employee calls in absent they are to advise XXX of their expected date of return. Management reserves the right to require proof of illness, injury or accident, including a doctor’s statement or notice for any temporary disability.” You have not provided this.

    The hand book also states “Repeated absences, excessive absences (excused or unexcused) or a pattern of absences are unacceptable job performance. If an employee is absent for three consecutive days and has not provided proper notification, XXX will assume that the employee has abandoned their position and will be treated as having voluntarily terminated employment with XXX.”


    I did provide Stan with Form WH 380 E, which he has not returned. However, I believe XXX is not held for FMLA?

    Can XXX terminate Stan? Under Employee Handbook Voluntary Terminated Position and Using XXX Credit Card with proper Authorization?

    Thank you in advance for your assistance.

  2. #2
    Join Date
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    Default Re: Can I Fire Stan

    XXX doesn't need a reason to fire Stan to begin with, but using the credit card without authorization is reason enough anyway.

  3. #3
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
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    Default Re: Can I Fire Stan

    How long ago did you provide Stan with the WH380E?

  4. #4
    Join Date
    Oct 2014
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    8,238

    Default Re: Can You Fire an Employee Who May be FMLA-Eligible

    XXX may certainly terminate Stan. The stated reasons you’ve given for terminating Stan is that he misused the company credit card and has been slandering the employer, neither of which are prohibited reasons for terminating an employee. The usual problem with firing an employee while out on FMLA leave is that the timing of the termination may give the appearance that the employee is being terminated because he or she used FMLA leave. Retailiation for using FMLA leave is, of course, also illegal. Here the employer has two defenses assuming that it is a private firm: (1) with only 10 employees the employer is not subject to FMLA (or the California version of that Act) to start with and (2) it was while out on leave that Stan misused the credit card and the documentation of the credit card transactions is great proof that the misuse of the card is the real reason for termination. California does have a separate program of paid leave provided by the state that applies to employers of all sizes, but under that Act the employer is not required to hold the job for the employee.

    Employee handbooks are, by the way, generally unenforceable as a contract and thus not something that an employee may rely upon as the employer may change it or even ignore it without much consequence. So unless the employer does not need to point to some provision in the handbook to fire the employee unless the employer really screwed up and made the handbook part of a contract with the employee.

    Given that Stan is out on leave approved by the employer I think trying to rely on the “voluntary termination” language in the handbook is quite weak even if it amounted to a contract.

  5. #5
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Can You Fire an Employee Who May be FMLA-Eligible

    I completely missed that it was only 10 employees. FMLA does not apply.

    Just to explain my thought processes, while I agree (and have from the beginning) that XXX may certainly term Stan, I was thinking that if Stan had been given the form more than 15 days ago, they wouldn't have to worry about any FMLA violation claims since that's the maximum time they have to wait for medical certification. But since FMLA doesn't apply at all, that's all taken care of.

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